Recently, the number of articles concerning a reform of the Expropriation Act has multiplied in the media space. However, only one side of the coin seems to be portrayed, that of the representatives of municipal authorities. With respect, these articles paint an overly summary portrait of the issues and, in my view, it is important to explore certain aspects in greater depth.
In order to better understand the situation as a whole, it is essential to know the point of view of the expropriated representatives, including myself, who also advocate for a reform of the Expropriation Act but who maintain that this reform should not pass by modifying the principles of compensation surrounding the notion of value to the owner.
For several months now, we have been hearing that the working group promised by the government during the signing with the municipal sector of the Partnership 2020-2024: For even stronger municipalities and regions was created and that it is made up of representatives from the Ministry of Transport, the Ministry of Municipal Affairs and Housing, the Union of Quebec Municipalities, the Quebec Federation of Municipalities and the largest cities in Quebec.
Very little official information can be found in the public space regarding the work of this group. However, many rumors are circulating. And we hear that a bill could be introduced in the next few months.
At the same time, we have also witnessed, in recent years, the adoption by the government of special laws setting aside several provisions of the Expropriation Act and ensuring that certain acquisitions made by expropriation henceforth obey different rules. The government has thus made the acquisition of buildings necessary for carrying out the REM subject to a separate procedure.1, significantly limiting the rights of owners. Subsequently, the government adopted a similar law, in 2019, this time targeting acquisitions relating to the Quebec City tramway project.2. Then, in the wake of the pandemic, the government adopted similar rules3 regarding the extension of the blue metro line and nearly 200 projects located throughout Quebec.
In such a way that the Expropriation Act, which has always been recognized to this day as being the framework law governing expropriations in Quebec, is now relegated to the background and only applies exceptionally. We now find ourselves with different “categories” of expropriated persons and expropriations that obey variable rules, whereas the objective pursued by the legislator when adopting the Expropriation Act was precisely to standardize and standardize expropriation procedures, regardless of the nature of the project and regardless of the identity of the expropriating body.
Let us also recall that the Expropriation Act is first and foremost a procedural law. For the benefit of politicians, who sometimes make shattering statements, often ill-advised, let us point out that the principles of compensation in matters of expropriation derive from texts much more fundamental than the Expropriation Act. They come from Quebec Charter of Human Rights and Freedoms4. They also come from Civil Code of Quebec which prescribes that the owner of a building “cannot be forced to transfer his property, except by way of expropriation made according to the law for a cause of public utility and subject to fair and prior compensation”5. They come from the founding principles of our society, which elevate the right to property to the rank of quasi-constitutional rights. It would be surprising, to say the least, for an indemnity to be deemed fair if it could be influenced by the zoning regulations imposed on a building prior to the expropriation or if it is based on the value of the building as established unilaterally. by the city to its assessment roll.
The Expropriation Act was initially adopted in 1972. It seems obvious to me that nearly 50 years later, this law would benefit from being revised and adapted to contemporary realities, so as to simplify and optimize the process of acquisition by expropriation and, consequently, the carrying out projects of public interest.
The Minister of Transport is the minister responsible for Expropriation Act but it is also the largest expropriating body in Quebec. It is followed closely by the municipalities of Quebec, which benefit from broad powers of expropriation and which use them very frequently. It would be surprising, to say the least, if a working group composed solely of representatives of the expropriating bodies could propose a balanced reform that also takes into account the concerns of the expropriated.
I appeal to the government and urge it to ensure that this review is the result of reflection involving all stakeholders and that it is not just the dictate of expropriating bodies. Knowing that a new law is always subject to the supervisory power of the Superior Court and that the same applies to actions taken by public bodies, only a process involving stakeholders from all walks of life can lead to a reform that is immune to legal challenges.
The professional lawyers and appraisers who represent the expropriated parties, as well as the associations which bring together the owners, should be involved in the reform process so that the result is a balanced law which makes it possible both to achieve the objectives of speed and efficiency pursued by public bodies, while ensuring respect for the rights of private owners.
I note that, unfortunately, too often in the past, private owners and their representatives have had the opportunity to express themselves only during parliamentary committees held after the tabling of a bill. Why not involve them upstream of the process, so that they participate actively and constructively in the reflection?
After all, it is from consultation that consensus can arise and it is from consensus that membership can arise.
Sylvain Belair is a partner in municipal law and expropriation at De Grandpré Chait. Recognized for his extensive expertise in municipal law and public administrative law, Sylvain Bélair touches on several aspects in his practice, including expropriation
- Act respecting the metropolitan electrical network, CQLR, c. R-25.02
- Act respecting the structuring public transit network of the City of Québec, CQLR, c. R-25.03
- Act respecting the carrying out of certain infrastructure projects, CQLR, c. A-2.001
- CQLR, c. C-12, section 6
- Section 952